We are happy to bring to you yet another insightful post in the ongoing series of posts by Prof. (Dr.) N.S. Gopalakrishnan on problems with India’s plant varieties’ regime. This post is Part II of the three-part post where Prof. Gopalakrishnan critically examines the procedure followed for registration of farmers’ varieties. Part I of the post can be viewed here and the earlier posts in the series, here,here and here.

Problems with the Indian Plant Varieties Regime (IV):

Obliterating the “Farmers’ Variety” (Part II)?

Prof. (Dr.) N.S. Gopalakrishnan

Farmers’ variety, as explained in the earlier post, is the unique outcome of the traditional innovation methods adopted by the farming community. To promote and preserve such informal innovation methods, our Parliament inter alia envisaged separate registration for the farmers’ variety, without too many formalities. It is evident from post III that the Authority has been registering it as an independent category under section 14(c) of the Act, and has excluded it from the “extant variety” category to be registered under section 14(b). Unfortunately, contrary to the intention of the Parliament, the Authority has followed procedures that are detrimental to the farmer by prescribing a complicated application form along with the need for an endorsement for registering the farmers’ variety. It has also illegally used the criteria of DUS and test Guidelines developed for registering new varieties to test the suitability of the farmers’ variety for registration. The implications of this insidious strategy to effectively obliterate the category of “farmers’ variety” are examined below.

Application for Registration and Endorsement

The first step taken by the Authority in 2006 to register farmers’ variety was to include the farmers’ variety in the application Form 1 for registration of new and extant variety. At the outset, it is to be noted that this is contrary to the proviso to section 18(1) of the Act which stipulates a separate application form for the registration of a farmers’ variety. As per Form 1, the farmer was expected to provide all details similar to that of an applicant for registration of a new variety. One of the important requirements in Form 1 is to furnish the details of DUS features of the variety. The farmer was also bound to provide DUS features including the group characteristics as specified in the test Guidelines. The “Technical Questionnaire” with specific details of DUS was also to be attached along with the application. A perusal of the technical questionnaire reveals that the kind of technical details called for (in relation to establishing DUS criteria) is the same as that for a new variety using formal breeding techniques. Quite clearly, no farmer will be in a position to give these details unless his traditional variety is scientifically tested by a modern breeder in the laboratory and filed. As such, Form 1 was not only hostile to the farmer but also against the mandate of the Parliament which, as per the proviso to section 18(1), exempted the farmer from furnishing DUS details for registration.

It was only in 2013 that the Central Government amended the 2003 PV Rules and included Rule 25A prescribing a separate application form for the registration of farmers’ variety. However, even this form is found seriously wanting. Rather than seeking information based on traditional innovation practices followed by farmers, this new form replicates all the contents of Form 1, save the requirements relating to DUS. This is again contrary to the proviso to section 18(1) and gives the impression of a badly edited version of Form 1. Most of the information required under this new form is rather irrelevant for the registration of a farmers’ variety. The most worrisome feature is the absence of any provision to collect information regarding the physical features of the farmers’ variety (phenotype). This shows the apathy of the Authority in appreciating the mandate of the Parliament to develop a separate application form that captures the essential features of the farmers’ variety bred, evolved or developed through informal breeding methods. One hopes that the application form is amended in the near future to make it more simple and relevant to farming communities.

Annexure I for Endorsement

The most troubling part of Form 1 was Annexure I to be attached along with the application for the registration of farmers’ variety. This annexure is essentially a declaration by the applicant, endorsed either by the concerned Panchayat Biodiversity Management Committee, or District Agricultural Officer, or Director of Research of concerned State Agricultural University or District Tribal Development Officer. This is retained in the new form prescribed in 2013 as well. A perusal of Annexure 1 indicates that the applicants must declare that they “are the initial and exclusive developers and continuous conservers of the candidate variety” and the official has to endorse that “It is hereby certified that the above said candidate variety is bred/developed and continuously conserved and cultivated only by the applicant farmer/group of farmers/community of farmers who is/are permanent residents of above said village(s) and I am fully conversant with the applicant farmer/group or community of farmers and that the candidate variety is due to their efforts”(emphasis mine). This requirement has the following implications. Firstly, it is a requirement not envisaged by the Act and a clear case of discrimination, since there is no such requirement when registering new and extant varieties. It also shows the level of distrust in farmers who seek to register their varieties. Secondly, the farmer can register only those varieties that are “bred/developed and continuously conserved and cultivated” by them and not varieties that have only been conserved and cultivated, including “wild relatives or land races or varieties about with farmers possess common knowledge”, a category that is expressly included in the definition of “farmers’ variety”. It is significant to note that the definitions of the farmers’ variety, farmers and breeder as explained in the earlier post uses terms such as “cultivates, conserve, preserve and evolved” to capture the traditional breeding and in situ conservation. This is to ensure registration of all farmers’ varieties, irrespective of whether its origin could be traced back to a farmer, group of farmers or community of farmers. As such, this requirement contravenes the intention of Parliament. Finally, the categories of “group of farmers” and “community of farmers” as applicants are included in the new form and Annexure I, without prescribing any guidelines to distinguish between them. Given the social, economic, religious and cultural background of the Indian villages, this is bound to create practical problems. It is difficult to comprehend how this is permissible under the law and leaves much room for manipulation. The problems that cropped up during registration are illustrated in the next blog post through a case study of the registration of Gandhakasala and Jeerakasala: two traditional farmers’ rice varieties from the State of Kerala.

Proposed amendment to Annexure I

It is shocking to note that the Authority in its 29th Meeting held on 16th April 2018 (Agenda item 18) decided to amend the Sixth Schedule in the Rules (relating to Annexure I) and change the officials who are authorised to issue the certificate. As per this decision, the proposed officials are: “Director of Research of SAUs/Project Co-ordinators/Directors of concerned mandated crop based institutes of ICAR through any of their offices/branches in their jurisdiction”. Further, it is deplorable to note that the Authority also decided that “to maintain genetic purity in farmers varieties submitted for DUS testing, an amendment will be made to the effect that before filing of the application for registration of farmers’ varieties, the endorsing Authority shall have to conduct/facilitate under its functional jurisdiction a screening test on field for establishing the genetic Uniformity and Stability criteria of the variety to depose and file the affidavit in PPV&FR Authority and thereafter the application for registration of farmers’ be filed”.

This practically means that the farmer has to first approach the local agricultural research institute to get his or her variety scientifically tested and screened before filing an application. Only those varieties that are proved to be “genetically pure” will be recommended for registration. This not only adds an additional burden on the farmer, but also excludes a number of farmers’ variety from registration. This is clearly an attempt to use modern breeders and the standards of formal breeding to validate varieties that are developed and conserved though informal breeding techniques followed by farmers. This is contrary to the intention of the Parliament and urgent intervention is necessary to prevent the Authority from implementing this decision to safeguard the interest of farmers.

DUS Testing for Farmers’ Variety

Contrary to the provisions of the Act, the Protection of Plant Varieties and Farmers’ Right (Criteria for Distinctiveness, Uniformity and Stability for Registration) Regulation, 2009 expressly includes provision for DUS testing of farmers’ variety. It is significant to note that the 2009 Regulation was made in exercise of the power to make regulation under section 15(2) of the Act to register an extant variety. The title of Regulation 5 shows that it deals with the criteria for DUS of farmers’ variety. According to the regulation, the farmer applying for registration of a farmers’ variety under section 14(c) shall “submit half the quantity of seeds as divided into five equal number of packets for the purpose of field test and also for storing in National Gene Bank …”. Regarding “distinctiveness”, it is stated in sub clause (2) that “wherever the distinctiveness of the variety is required to be verified, field test will be conducted for DUS in the test Centre”. There is no mention of separate criteria of DUS. Thus, it gives the impression that the general criteria of DUS and the test Guidelines developed to conduct the field test based on genotype for new variety will apply for determining the distinctiveness of farmers’ variety as well. The use of the terms “wherever distinctiveness of the variety is required to be verified” gives an impression that distinctive test is not mandatory for all cases, and one expects the Authority to specify when it is required. But no information/guidelines are available in this regard and the Annual Reports are very sketchy, when dealing with the registration of farmers’ variety.

Regarding the method of field test, it is stipulated in sub clauses (3) and (4) that “the farmers’ variety along with an example variety and any other similar variety shall be evaluated on a “paired row test”. It is further specified that “it shall be a replicate trial and will be conducted for one season at two locations for the limited purpose of confirming distinctiveness following the descriptors as such may be specified in the Journal”. According to sub-clauses (6) and (7) dealing with uniformity and stability, it is clarified that “the uniformity level for Farmers’ variety for the respective species level shall not exceed double the number of off-types specified in the Journal” and “if the variety meets the uniformity criteria, it shall be deemed to have met the stability criteria”. The Authority in September 2009 Journal (Volume 3, No.9 page 7) notified for 15 crops such as bread wheat, rice, maize, sorghum, green gram, black gram, jute, etc., the permitted off-type/population of new variety/hybrid to be applied for determining the uniformity level for the farmers’ variety. Thus it is clear that the criteria of DUS and the Guidelines for a “new variety” is applicable to farmers’ variety as well, with some minor concessions as specified in the Regulations.

If one scans through the Annual Reports from 2008 to 2017, only in the 2009-10 to 2011-12 Reports, in Chapter 2 dealing with “Progress of Plant Variety Registry”, there is a brief mention about the “Grow Out Test” being carried out for the applications received for farmers’ varieties. Even this brief description disappeared from 2012-13 onwards (except in 2015-16). What is striking is the rather elaborate manner in which the registration of new varieties, notified extant varieties and varieties about which there is common knowledge bred by the modern breeders have been detailed in the annual reports. Contrast this with the rather miserly mention of farmers’ variety evolved and conserved through informal breeding methods; a contrast that reflects the step motherly attitude of the Authority towards the registration of farmers’ variety.

A quick reading of the Chapter dealing with DUS testing in the Annual Reports clearly indicates that the farmers’ varieties are tested for DUS. Even though “Grow Out Test” is mentioned for farmers’ variety, no information is available in the Annual Reports to discern whether this is based on a different set of criteria of DUS and Guidelines for testing. There is also no information regarding the development of separate criteria of DUS or Guidelines for testing the farmers’ variety, other than the concessions on testing provided in the Regulation 5 of 2009. This compels one to infer that the criteria of DUS and test based on the Guidelines developed for new varieties are being followed in case of farmers’ variety as well. Clearly expecting farmers (who rely on phenotype) to comply with tests devised for new varieties (that rely on genotype) will do them more harm than good.

One wonders as to how Authority has brazenly infused its own set of laws/norms to render a regime that is rather hostile to farmers, and militates against the intention of the Parliament. It is no surprise then that there were only 7 applications for the registration of farmers’ variety during 2006-08. It is also pertinent to note that out the initial 7 applications, it was only in December 2009 that the first three certificates for farmers’ variety were issued by the Authority followed by one each in April 2012, April 2013, November 2014 and one is still under DUS testing as per the application status issued by the Authority on 7th May 2018. The Annual Reports clearly indicated that before registration the application along with the DUS test report was notified for objection which is evident from the public notice issued in the Journal. This also shows the time taken by the Authority in conducting the DUS test, notifying the application for opposition and issue of the certificates.

What makes one upset is the insistence of the Authority to conduct DUS for the time tested farmers’ variety that too after insisting for a certificate from a responsible local official endorsing that it was continuously in cultivation. In the context of the Authority illegally exempting the DUS test for the notified extant variety as illustrated in post III, there seems no justification for insisting DUS test for farmers’ variety using Guidelines that too developed for testing new varieties bred using modern breeding techniques when Parliament is silent about it. It appears that the failure of the Authority to structure an application form seeking complete details of the farmers’ variety based on traditional breeding practices is the main reason for this unfortunate situation. This also demonstrates the closed mindset of the Authority towards promoting informal innovation methods followed by the farmers which the Parliament wanted to simultaneously encourage. This calls for an urgent intervention of the Parliament by prescribing specific requirements for the registration of farmers’ variety. The registration trends of farmers’ variety and the associated problems are examined in the following blog post.

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Leading IP Academics Fired

This protest petition against unfair dismissals of Prof. N. S. Gopalakrishnan, Ministry of Human Resource Development (MHRD) Chair Professor at Cochin University of Science and Technology (CUSAT) and Prof. Yogesh Pai, MHRD Chair Professor at National Law University at Jodhpur, is now closed.

It was posted on SpicyIP blog on August 28, 2013 by Prof. Shamnad Basheer. Link to petition here: http://spicyipindia.blogspot.in/2013/08/leading-ip-academics-fired-protest.html